4(C)(i). Freedom from torture, ill-treatment, exploitation, violence and abuse

English

Monitors have uncovered a number of forms of ill-treatment against people with mental health issues in Zambia. It is important to point out that some have been carried out without intent to harm. However, under international human rights law, all forms of torture, inhuman or degrading treatment are prohibited in absolute terms.36 In particular, the UN Convention against Torture and the CRPD both establish requirements on the government to protect everyone from abuse.37 The CRPD’s longest provision is focused on preventing and providing remedies for all forms of exploitation, violence and abuse.38 The CRPD requires governments to mandate healthcare professionals to provide care, “on the basis of free and informed consent”.39 The UN Special Rapporteur on Torture has clearly stated that the “criteria that determine the grounds upon which treatment can be administered in the absence of free and informed consent should be clarified in the law, and no distinction between persons with or without disabilities should be made”.40

The UN Special Rapporteur recommends banning seclusion and restraints. Even if applied for a short period these “may constitute torture and ill-treatment”.41 Guidelines developed by medical and nursing bodies in other countries have detailed how staff must prevent the need for restraints, emphasising prevention of distress with a focus on techniques such as enhanced observation, de-escalation methods and advance discussion with patients of their preferences.42 Although international practice varies, there is a growing evidence base that mental health care can and should be carried out in the least restrictive manner possible.43

Photo: A resident of the Nsadzu Mental Health Rehabilitation Centre. 26 October 2012. © MDAC.Photo: A resident of the Nsadzu Mental Health Rehabilitation Centre. 26 October 2012. © MDAC.


36 At the regional level, the African Charter of Human and Peoples’ Rights (ACHPR) prohibits “all forms of exploitation and degradation of man” including torture, cruel, inhuman or degrading punishment and treatment (Article 5, ACHPR). It guarantees the best attainable state of physical and mental health, provides for special protection for the “aged and the disabled” and gives everyone the right to a “general satisfactory environment favourable to their development” (Articles 16, 18 and 24, ACHPR). These apply equally to people with psycho-social disabilities (Articles 2 and 3, ACHPR). Additional protection is provided to women with psycho-social disabilities through the Protocol to the ACHPR on the Rights of Women in Africa, which obliges States to provide special protection to ensure their right to freedom from violence, including sexual abuse, discrimination based on disability and right to be treated with dignity (Article 23 of the Protocol). It further prohibits all forms of exploitation, cruel, inhuman or degrading punishment and treatment and obliges states to adopt legislative, administrative, social, and economic measures necessary to ensure the prevention, punishment and eradication of all forms of violence against women (Articles 4(1) and 4(2)b of the Protocol). The African Charter on the Rights and Welfare of the Child (ACRWC) provides similar protection to children.

37 Articles 15 and 16 of the CRPD respectively. See also Article 11 of the CAT; Articles 7, 10(1) (2) & (3) and 16 of the ICCPR, and Articles 19(1) & (2) and 23of the CRC.

38 Article 16 of the CRPD.

39 Ibid. Article 25(d).

40 UN Human Rights Council, Report of the Special Rapporteur on torture and other cruel, inhuman or degrading treatment or punishment, Juan E. Méndez, 1 February 2013, A/HRC/22/53.

41 Ibid., at para 23.

42 See for example, Royal College of Nursing, Violence: The short-term management of disturbed/violent behavior in in-patient psychiatric settings and emergency departments (2005)

43 See, for example, Mental Disability Advocacy Center, Cage beds and coercion in Czech psychiatric institutions, (Budapest 2014), at Chapter 8.

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